AH – 64A
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
AND
TRANSPORTATION COMMUNICATIONS DIVISION, BRAC
(The “Union”)
RE GRIEVANCES OF J.G. LANDRY & J.R. GOULET
SOLE ARBITRATOR: R. A. Gallagher
There appeared on behalf of the Company:
William S. Hodges – System Labour Relations Officer
K. A. Pride – Labour Relations Assistant
And on behalf of the Union:
F. E. Soucy –General Chairman
G. E. Hlady – General Secretary-Treasurer
A hearing in this matter was held at Montreal on November 13, 1970.
AWARD
Pursuant to the provisions of the collective working agreement between the above parties the grievance hereinafter referred to was referred to the undersigned as a single Arbitrator for determination.
Also pursuant to the provisions of the said agreement the Arbitrator held a hearing with representatives of the parties in the offices of the Company at Montreal, Quebec, on Friday, November 13th, 1970.
At this meeting the parties agreed that the Arbitrator was properly appointed pursuant to the terms of the said collective working agreement, and had the jurisdiction and authority to determine the matter in issue in this grievance.
The facts in this grievance involve two employees of the Company, Mr. J.G. Landry and Mr. J.R. Goulet, both of whom are classified as Swing Operators. Mr. Landry has his headquarters in Beloeil, Quebec and Mr. Goulet has his headquarters in Sherbrooke, Quebec. On March 11th and 18th, 1970, Mr. Landry was required to work in St. Hyacinthe, Quebec, a distance of approximately 20 miles by road from his headquarters in Beloeil. On March 4th, 11th, 18th and 25th, 1970 Mr. Goulet was required to work in Richmond, Quebec, a distance of approximately 25 miles by road from his headquarters in Sherbrooke.
In both the case of Mr. Landry and Mr. Goulet it was their regular assignment that they should work in St. Hyacinthe and Richmond respectively on a regularly assigned basis.
In connection with the services performed by them on the above date, both Mr. Landry and Mr. Goulet applied for payment of transportation expenses for the use of their automobiles and were paid for same in accordance with the provisions of the collective agreement.
In addition, they both applied for payment of a per diem allowance of $3.50, as more particularly referred to in article 20.2 which is set out hereunder, and which allowance they had applied for, and been paid, in connection with similar services in the past.
On this occasion the Company took the position that Mr. Landry and Mr. Goulet were not entitled to this per diem allowance, and as a result this grievance came about.
It is necessary to an understanding of this issue to set out a portion of article 20.1 and all of article 20.2 of the said collective agreement. The relevant articles read as follows:
20.1 The headquarters of Swing Dispatchers … Swing Operators … will be designated by the Chief Dispatcher …
20.2 Such employees will be allowed $3.50 per day expenses for living accommodation for each calendar day that such accommodation is required away from such headquarters. However, a Spare Operator who relieves at a point within the same metropolitan area as his headquarters shall not be entitled to any allowance.
The allowance for mileage for use of their automobiles in travelling to their respective places of duty is covered under another subsection of the same article and is not relevant to the Arbitrator’s considerations.
The issue between the parties is relatively easy to state. The Union says that the per diem allowance of $3.50 is an “arbitrary” payment, which appears to mean in railway parlance that it is a payment established by the terms of the collective agreement which is to be paid regardless of the circumstances of any individual case, and that in the instant case such payments must be made to Mr. Landry and Mr. Goulet without consideration of any of the circumstances relating to the specific data outlined above.
The Company, on the other hand, takes the position that the per diem allowance is not an “arbitrary” but in fact is only required to be paid if living accommodation is required away from the person’s assigned headquarters, and therefore the question of necessity for such living accommodation becomes relevant in each case in determining if such payments should be made or not.
As well, the parties are in dispute as to what is meant by the words “living accommodation” as used in the above article. The Company, apparently, wishes to interpret these words as meaning “lodging” expense, while the Union contends that these words have a much broader meaning.
The Arbitrator sees his function as being that of interpreting the words of the parties as agreed upon them and embodied in the relevant provisions of the collective agreement. It is not his function to add to, or detract from, such wording, or to render a decision which strains the language which has been used.
In the Arbitrator’s opinion the words “living expenses” are not confined to “lodging” expenses. Such an interpretation would be too narrow and would negate the obvious intent of the parties. If the parties had intended that the payment would be made only if “lodging accommodation” was required it would have been a simple matter to so state. In the Arbitrator’s opinion, and without endeavoring to be exhaustive of the subject, the words “living accommodation” could mean expenses incurred in obtaining meals, light lunches, coffee, rental of accommodation, and so on, depending on the circumstances of an individual’s case.
The Arbitrator is of the further opinion that the said payments are not in the nature of “arbitraries”. The wording of the article in question does not permit of this interpretation when it states:
Such employees will be allowed $3.50 per day expenses for living accommodation for each calendar day that such accommodation is required away from such headquarters. …
In the context of this provision, and having regard to the particular part of the article which the Arbitrator has underlined, it is obvious that each situation must be considered from the standpoint of whether or not payment will be made on the basis of the circumstances surrounding that particular situation.
The test as to whether payment of the above allowance is to be made, or not, is not, inn the Arbitrator’s view, to be predicated on the distance an employee is away from his headquarters. It is conceivable that an employee might only be 10 or 15 miles away from such headquarters, and yet, due to the circumstances of his situation, not be entitled to payment of this allowance.
Nor is it determinative of any particular employee’s application for this payment that the Company on another occasion in relation to the same employee has refused, or allowed, such payment. The circumstances of each particular case must be examined to determine whether or not such living accommodation is “reasonably” required under the circumstances of that particular situation and that situation only.
In the instant case both Mr. Landry and Mr. Goulet worked at St. Hyacinthe and Richmond respectively from 2330 hours on Tuesday to 0730 hours on Wednesday. On completion of their respective assignments they apparently got into their automobiles and drove the 20 miles and 25 miles respectively to their homes.
There was no evidence put before the Arbitrator to indicate that either Mr. Landry or Goulet were delayed in any way in going from their place of work to their homes, by weather, road conditions, or the like, or that they were required to expend money for “living accommodation” which they would not normally have spent.
In the circumstances of these cases, and in those circumstances only, the Arbitrator find it impossible to say that “living accommodation” was required away from their headquarters.
The Arbitrator therefore awards that the said grievance be dismissed.
DATED AT Winnipeg, this 20th day of November, 1970.
(signed) R. A. GALLAGHER
ARBITRATOR